Frazier v. State

By separate indictments, Bob Frazier and Rube Frazier were charged with an assault upon Munoz. On the trial no testimony was adduced against Bob Frazier, whereupon Rube Frazier, the appellant, requested the court to dismiss the prosecution against Bob Frazier so that he might become a witness for the appellant. Ordinarily, where persons are indicted for the same offense either in a joint or separate indictment, a severance may be had under proper conditions, and if the one first tried is acquitted, his testimony becomes available to his codefendant. C. C. P., Arts. 650 and 651. The statute permits, in the event of a severance, an agreement as to the order of trial. It also permits a dismissal by the prosecution which would restore the competency of the codefendant as a witness. C. C. P., Arts. 652 and 653; Jones v. State, 85 Tex. Crim. 538.

Art. 654, C. C. P., reads as follows:

"When it is apparent that there is no evidence against a defendant jointly prosecuted with others, the jury shall be directed to find a verdict as to such defendant; and, if they acquit, he may be introduced as a witness in the case."

In the present instance, it does not appear that there was a joint trial; nor is the failure to apply for a severance explained. In the books are instances in which a reversal was ordered though there was neither a severance nor a joint trial, but in which on appeal it was made to appear that one who would have been otherwise competent and material to the accused as a witness was in bad faith indicted or charged with the same offense in order to deprive the accused on trial of his testimony. Such was the case of Doughty v. State, 18 Tex. Cr. App. 179, to which the appellant refers. See also Dodson v. State, 52 Tex.Crim. R.; Cundiff v. State, 86 Tex. Crim. 477; Fagan v. State, 112 Tex.Crim. R.; Lyles v. State, 41 Tex. Rep. 172. Nothing in the present record brings the appeal *Page 152 within the purview of the principle last mentioned above. If it be assumed that in refusing to annul the prosecution against Bob Frazier the trial court was in error, this court would not be in a position to estimate the effect of the error for the reason that the testimony expected from Bob Frazier is not made known. That the refusal of the trial court to receive the testimony of a given witness cannot be intelligently reviewed on appeal when the complaint is not accompanied by information showing the nature of the testimony expected, seems obvious. Moreover, this court has uniformly declared such a bill of exception inadequate. Welch v. State, 57 Tex.Crim. R.; Hobbs v. State, 16 Tex. Cr. App. 521; Massey v. State, 1 Tex. Cr. App. 569; Walker v. State, 9 Tex. Cr. App. 200, and numerous other precedents collated by Mr. Branch in his Ann. Tex. P. C., p. 135, sec. 212.

The motion for rehearing is overruled.

Overruled.